[Introduced February 21, 2013; referred to the
Committee on Energy, Industry and Labor, Economic
Development and Small Business then the Judiciary.]A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated, §22-1B-1, §22-1B-2,
§22-1B-3 and §22-1B-4, all relating to creating the Intrastate
Coal and Use Act; establishing that the environmental
regulation of coal and certain coal products mined and used
within the state are exclusively regulated by the West
Virginia Department of Environmental Protection; stating the
legislative authority; requiring record keeping; and defining
terms.Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §22-1B-1, §22-1B-2,
§22-1B-3 and §22-1B-4, all to read as follows:ARTICLE 1B. INTRASTATE COAL AND USE ACT.§22-1B-1. Short title.
_____This article may be cited as the "Intrastate Coal and Use Act".§22-1B-2. Legislative declarations of authority.
_____(a) The Legislature declares that the authority for this
article is as follows:
_____(1) The Tenth Amendment to the United States Constitution
guarantees to the states and their people all powers not granted to
the federal government elsewhere in the Constitution and reserves
to the state and people of West Virginia certain powers as they
were understood at the time that West Virginia was admitted to
statehood in 1863. The guaranty of those powers is a matter of
contract between the state and people of West Virginia and the
United States as of the time that the compact with the United
States was agreed upon and adopted by West Virginia and the United
States in 1863.
_____(2) The Ninth Amendment to the United States Constitution
guarantees to the people rights not granted in the Constitution and
reserves to the people of West Virginia certain rights as they were
understood at the time that West Virginia was admitted to statehood
in 1863. The guaranty of those rights is a matter of contract
between the state and people of West Virginia and the United States
as of the time that the compact with the United States was agreed
upon and adopted by West Virginia and the United States in 1863.
_____(3) Article I, Section 2, of the West Virginia Constitution,
states that "the government of the United States is a government of enumerated powers, and all powers not delegated to it, nor
inhibited to the states, are reserved to the states or to the
people thereof." Specifically enumerated among those "powers so
reserved to the states is the exclusive regulation of their own
internal government and police; and it is the high and solemn duty
of the several departments of government, created by this
Constitution, to guard and protect the people of this state from
all encroachments upon the rights so reserved."
_____(4) The regulation of intrastate commerce, including the
natural environment as affected by intrastate business, is vested
in the states under the Ninth and Tenth Amendments to the United
States Constitution and is specifically retained by the State of
West Virginia according to Article I, Section 2, of the West
Virginia Constitution.
_____(b) The Legislature further declares that the United States
Environmental Protection Agency, acting under the color of
authority of Congress to regulate interstate commerce, lacks the
authority to deny permits of operation to such coal mines and
facilities as the products of these mines and facilities have not
traveled in interstate commerce. The recent actions of the United
States Environmental Protection Agency, specifically affecting
Logan County, by denying or shutting down mining permits long after
the basic permits had been approved presents the threat of the
United States Environmental Protection Agency shutting down all coal mining in West Virginia, costing the jobs of thousands of
miners and driving the state into bankruptcy. Changing the rules
after the permitting process has long been in effect is improper,
illegal and amounts to the executive branch of the United States
legislating new law, without authority, proper procedure and with
no protection to the West Virginia coal industry or its employees. §22-1B-3. Definitions.
_____As used in this article, the following definitions apply:
_____(a) "Borders of West Virginia" means the boundaries of the
State of West Virginia described in Article II, Section 1, of the
1872 West Virginia Constitution.
_____(b) The term "coal mine" means those operations removing coal
from a coal seam or seams, whether aboveground or underground.
_____(c) "Chemically altered coal product" means any product
derived principally from coal, including, but not limited to, coke
or liquid fuels derived from coal by any process.§22-1B-4. Responsibility of West Virginia Department of
Environmental Protection.
_____(a) In light of the above findings, environmental regulation
in West Virginia for all purposes of regulating business activity
performed in West Virginia, when the products of the business
activities are held, maintained or retained within the borders of
West Virginia, is the principal responsibility of the West Virginia
Department of Environmental Protection.
_____(b) Any West Virginia coal mine producing coal which is used
commercially or privately in West Virginia and which is consumed or
otherwise remains within the borders of West Virginia and any West
Virginia facility producing chemically altered coal products used
commercially or privately in West Virginia which remain within the
borders of West Virginia, shall be issued a permit to operate by
the West Virginia Department of Environmental Protection once the
West Virginia Department of Environmental Protection has certified
that the mine or facility is compliant with all applicable state
and federal laws or state and federal regulation.
_____(c) A sample from each vein of coal in a mine and a sample of
coal from each West Virginia source used at a facility producing a
chemically altered coal product shall be placed on record with the
West Virginia Department of Environmental Protection to verify the
West Virginia origin of the coal produced and used.
_____(d) This section applies to coal and to any chemically altered
coal product mined or produced in West Virginia from basic
materials which can be manufactured without the inclusion of any
significant components imported from another state.
_____(e) This section applies only to the issuance of a permit of
operation to a coal mine or facility producing chemically altered
coal products, the issuance of which permit is required by the
Clean Water Act or by another equivalent state or federal statute
or regulation. Nothing in this section shall be construed to limit the effect of any other state or federal statute or regulation.

NOTE: The purpose of this bill is to declare the position of
West Virginia as opposed to that of the United States Environmental
Protection Agency with regard to regulation of coal production; and
to emphasize that under the Ninth and Tenth Amendments to the
United States Constitution and Article I, Section 2, of the West
Virginia Constitution, the regulation of coal production in West
Virginia is subject to the authority of the West Virginia
Department of Environmental Protection.